Friday, October 29, 2010

Corporations.

Practice point: Persons may not be held personally liable on the corporation's contracts, provided they did not purport to bind themselves individually.

Students should note that a corporation's officers do not become liable merely because they have made decisions or taken actions that resulted in the corporation's breaching a contract.

Case: Stern v. H. DiMarzo, Inc., NY Slip Op 07327 (2d Dept. 2010)

Here is the decision.

Monday's issue: Municipalities Law.

Corporations.

Practice point: Persons may not be held personally liable on the corporation's contracts, provided they did not purport to bind themselves individually.

Students should note that a corporation's officers do not become liable merely because they have made decisions or taken actions that resulted in the corporation's breaching a contract.

Case: Stern v. H. DiMarzo, Inc., NY Slip Op 07327 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Municipalities Law.

Thursday, October 28, 2010

Motion practice.

Practice point: A sanction for spoliation requires a showing that the other side disposed of critical evidence, fatally compromising the ability to defend the action.

Students should note that, generally, striking a pleading is reserved for instances of willful or contumacious conduct.

Case: Scordo v. Costco Wholesale Corp., NY Slip Op 07324 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Corporations.

Wednesday, October 27, 2010

Motion practice.

Practice point: A cause of action based on promissory estoppel requires a clear and unambiguous promise; reliance by the party to whom the promise is made; and an injury sustained because of that reliance.

Students should note that Civil Rights Law § 80-b serves only to return the parties to their position prior to their becoming engaged if the marriage fails to materialize.

Case: Schwartz v. Miltz, NY Slip Op 07323 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Tuesday, October 26, 2010

Labor Law.

Practice point: A cause of action sounding in a violation of Labor Law § 200 or common-law negligence may arise either from a dangerous condition at the work site, or from the way the work was performed.

Students should note that the owner is not liable solely because it had notice of the way in which the work was being performed.

Case: Pilato v. 866 U.N. Plaza Assoc., LLC, NY Slip Op 07157 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Monday, October 25, 2010

Torts.

Practice point: A property owner is not liable for accidents resulting from the accumulation of snow or ice for a reasonable period of time after the storm has stopped.

Students should note that the question of whether a reasonable period of time had passed may be decided as a matter of law.

Case: Lanos v. Cronheim, NY Slip Op 07149 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Labor Law.

Friday, October 22, 2010

Motion practice.

Practice point: CPLR 208’s infancy toll is personal to the infant, and does not extend to a derivative cause of action.

Students should note that by demonstrating that defendant had timely knowledge of the facts underlying the claim, plaintiff establishes a lack of substantial prejudice on a motion for late service of the notice of claim.

Case: Kim L. v. Port Jervis City School Dist., NY Slip Op 07148 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.

Thursday, October 21, 2010

Contracts.

Practice point: Parol testimony is admissible to prove a condition precedent to the effectiveness of a written agreement, if the condition does not contradict agreement’s express terms.

Students should note that oral conditions may not be added to a signed and written real estate sales contract when its delivery was to the other party's agent.

Case: Torres v. D’Alesso, NY Slip Op 07127 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Wednesday, October 20, 2010

Ethics.

Practice point: The Court may suspend an attorney pending consideration of charges of misconduct, or upon the attorney’s failure to comply with a lawful demand of the Court or of the Departmental Disciplinary Committee.

Students should note that the attorney’s failure to respond to the Committee's inquiries, and failure to respond to the Committee’s motion to suspend, will result in an immediate suspension.

Case: Matter of Bautista, NY Slip Op 07126 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Contracts.

Tuesday, October 19, 2010

Motion practice.

Practice point: The court cannot dismiss a complaint for failure to prosecute if plaintiff has shown a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216.

Students should note that plaintiff might avoid dismissal even without this dual showing.

Case: Gibson v. Fakheri, NY Slip Op 07141 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Monday, October 18, 2010

Motion practice.

Practice point: In an action pleaded in products liability, breach of warranty or negligence, plaintiff must prove that the alleged defect was a substantial cause of the injury-producing event.

Students should note that defendants are liable for the foreseeable consequences of their acts, but plaintiffs need not demonstrate the foreseeability of the exact manner in which the accident happened.

Case: Fahey v. A.O. Smith Corp., NY Slip Op 07139 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Friday, October 15, 2010

Torts.

Practice point: An accountant may be liable in negligence to a third party if the accountant knew that the financial reports were to be used for a particular purpose, and that they would be relied on.

Students should note that in order to establish accounting fraud, plaintiff must show misrepresentation of material fact, scienter, reliance and damages.

Case: Barrett v Freifeld, NY Slip Op 07130 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Thursday, October 14, 2010

Torts.

Practice point: A condition that is ordinarily apparent may be considered a trap where the condition is obscured or the plaintiff is distracted.

Students should note that proof that a dangerous condition is open and obvious merely negates defendant's obligation to warn, but does not preclude the landowner's liability for not maintaining the property in a safe condition.

Case: Villano v. Strathmore Terrace Homeowners Assn., Inc., NY Slip Op 06789 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Wednesday, October 13, 2010

Motion practice.

Practice point: The motion to amend the bill of particulars will be denied when it was made four months after the note of issue was filed, and four years after the action was commenced.

Students should note that the claim of plaintiffs' counsel that he relied on his client's statement that the subject stairs were being renovated, and so he did not inspect them until four years after the accident, does not constitute a reasonable excuse for the delay in moving.

Case: Cintron v. New York City Transit Authority, NY Slip Op 07078 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Tuesday, October 12, 2010

Motion practice.

Practice point: No defamation claim lies if a complaint's allegations are pertinent to the action, since they are protected by the judicial proceedings privilege.

Students should note that the one-year statute of limitations for libel and slander starts to run on the date of publication.

Case: Casa de Meadows, Inc. v. Zaman, NY Slip Op 06712 (1st Dept 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Monday, October 11, 2010

Court holiday.

The courts are closed today, and so there is no post.

Tomorrow's issue: Motion practice.

Friday, October 8, 2010

Insurance Law.

Practice point: An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered.

Students should note that a subcontractor's obligation to replace work it damages goes to potential liability and does not create an insurable interest in the entire building.

Case: St. Paul Fire v. FD Sprinkler, NY Slip Op 06755 (1st Dept. 2010)

Here is the decision.

Tuesday's issue: Torts.

Thursday, October 7, 2010

Contracts.

Practice point: Plaintiff's knowledge of defendant's wrong act is not necessary to start the running of the Statute of Limitations.

Students should note that no appeal lies from a ruling made during oral argument.

Case: de Hermandez v. Bank of Nova Scotia, NY Slip Op 06754 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Insurance Law.

Wednesday, October 6, 2010

Ethics.

Practice point: Disbarment is warranted where there is a pattern of neglect of client matters and a failure to comply with court orders.

Students should note that the Court gives significant weight to the discipline imposed by the jurisdiction where disciplinary charges were originally brought, even if a different sanction would have been imposed in New York.

Case: Matter of Jaffe, NY Slip Op 06717 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Contracts.

Tuesday, October 5, 2010

Motion practice.

Practice point: A defendant looking to vacate a default judgment must demonstrate a reasonable excuse and a potentially meritorious defense.

Students should note that defendant's excuse that the insurer disclaimed coverage and that she could not afford an attorney is insufficient as a matter of law.

Case: O'Donnell v. Frangakis, NY Slip Op 06622 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Monday, October 4, 2010

Family Law.

Practice point: A custody agreement will not be set aside unless there is a significant change in circumstances, and the modification is in the best interests of the child.

Students should note that a noncustodial parent seeking the change must make an evidentiary showing sufficient to warrant a hearing.

Case: Jurgensen v. Jurgensen, NY Slip Op 06617 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, October 1, 2010

Motion practice.

Practice point: Stipulations of settlement are contracts and will be interpreted as such.

Students should note that the stipulation will be undone only on cause sufficient to invalidate a contract, such as fraud or mistake.

Case: Singh v. North Shore Univ. Hosp., NY Slip Op 06626 (2d Dept. 2010)

Here is the decision.

Monday's issue: Family Law.